Where a commission is required, it has generally been directed to the same Commissioners as were named in the former commission, but a commission will not be directed for the purpose of examining witnesses abroad, for which purpose, Ireland is considered as a foreign part, unless in case of great emergency; and where it is sworn, that no person in England can prove anything as to the witness's credit. If a party, who has obtained a commission to examine a witness to credit, delays the execution of it till after the decree, he will be made to pay the costs. The method of proceeding under an order of this nature, whether before the Examiner or under a commission, is precisely similar to that pointed out in ordinary cases.

The order usually directs, that the party applying be at liberty to examine witnesses, "as to credit, and as to such particular facts only as are not material to what is in issue in the cause"; and under it the party is at liberty to examine witnesses, not only to the general character of the witness whose credit is impeached, but also for the purpose of contradicting particular facts sworn to by the witness, provided such facts are not material to the issue in the cause, as in Purcell v. M'Namara, where the matter to be examined to was, whether the witness had not been a woollendraper and insolvent, which, upon his cross-examination, he had denied; or in Chivers v. Bax, where the articles charged, that though the witness, in her deposition for the plaintiff, had deposed that she lived with him as his milk-maid in 1775, she did not live with him in that or any other capacity till 1786, and that she had confessed to that effect, and that she had been prevailed upon so to depose at the instigation of the plaintiff's tithing-man, who was another witness for the plaintiff, and for a reward. In Ambrosio

1 Wood v. Hammerton, 9 Ves. 145. 'Callaghan v. Rochfort, 3 Atk. 643. White v. Fussell, 1 V. &. B. 151.

Purcell v. M'Namara, 8 Ves. 324; Wood v. Hammerton, 9 Ves. 145; Piggott v. Croxhall, 1 S. & S. 467.

• This proceeding may, ordinarily, be taken after publication and before hearing, but the interrogatories must be so shaped, as to prevent the party, under color of an examination as to credit, from procuring testimony to overcome that already taken and published in the cause. Gass v. Stinson, 2 Sumner, 605; Wood v. Mann, 2 Sumner, 316; Troup v. Sherwood, 3 John. Ch. 558.

• Ubi supra.

'Scacc.; cited 8 Ves. 324.

v. Francia, the articles charged that one of the witnesses who had been examined for a defendant, to nine out of seventeen interrogatories, by the description of Mary White, widow, was the wife of the defendant, and known to be such at the time of the examination, suggested that if she was not his wife, she lived with him, and an improper intimacy subsisted between them, and the order was that the plaintiff should be at liberty to examine to that fact, and also to the competence and credit of the witness.

It seems, also, that witnesses may be examined to discredit other witnesses, by proving that previously to their examination, they had made declarations contrary to their depositions.2

4

But, although the order permits the examination of witnesses to particular facts as well as to general credit, for the purpose of contradicting a witness previously examined, such facts must be strictly confined to those not in issue in the cause; and you can only, in examining as to the credit of the witness, put general questions, as "whether you would believe the witness upon his oath." It is not competent, even at Law, to ask the ground of that opinion, but only the general question is permitted. The regular mode of examining into general character, is to inquire of the witnesses whether they have the means of knowing the former witness's general character, and whether upon such knowledge they would believe him upon his oath."

3 Anon. 3 V. & B. 94. See Troup v. Sherwood, 3 John. Ch. 558, and next note above; Jenkins v. Eldredge, 3 Story C. C. 312, 313; Wood v. Mann, 2 Sumner, 316.

* Anon. 3 V. & B. 94. Upon such examination, the rule of evidence, as to impeaching the credit of witnesses, is the same in Equity as at Law. The inquiry must be general as to the general character of the witness for veracity. Troup v. Sherwood, 3 John. Ch. 558. The practice in reference to the extent of inquiry that may be made respecting the character of the witness to impeach his credit, and the questions that may be put, is not uniform in the American States. See 1 Greenl. Ev. § 461; Anon. 1 Hill, S. Car. 251, 258, 259; Hume v. Scott, 3 A. K. Marsh. 261, 262; State v. Boswell, 2 Dev. Law R. 209, 210; People v. Mather, 4 Wendell, 257, 258; Phillips v. Kingfield, 19 Maine, 375; Gass v. Stinson, 2 Sumner, 610; Wike v. Lightner, 11 Serg. & Rawle, 198; 1 Phil. Ev. (Cowen & Hill's ed. 1839,) 291-293, notes (530) (531); 2 Ib. (Cowen & Hill's notes.) p. 763 to 770.

5 Carlos v. Brook, 10 Ves. 49, 50.

• Phil. & Amos, 925. The regular mode of examining into the general reputation is to inquire of the witness, whether he knows the general reputation of

It is to be noticed, that although articles may be exhibited as to the credit of witnesses after publication, they are never allowed as to their competency, because it is said this might have been examined to and inquired into upon the examination;1 and it is for this purpose that a notice of the witness's name and place of abode is left with the solicitor of the opposite party before examination; and that, under the old practice, the witness himself was produced.2

Interrogatories adapted to the inquiry intended, must be drawn and filed in the same manner as upon examination in chief, and the witnesses examined thereon, either by commission or at the Examiner's Office. The other party may cross-examine those witnesses, as to their means of knowledge and the grounds of their opinion, or may attack their general character, and, by fresh evidence, support the character of his own witness.3

The rules as to passing publication, &c., are the same, mutatis mutandis, as those to be observed in ordinary cases.

Where an objection is established to the competency of a witness, his deposition cannot be read; but, where the objection is only to his credit, it must be read and left to the consideration of the Court on the whole evidence of the case.5

the person in question, among his neighbors; and what that reputation is, whether it is good or whether it is bad. In the English Courts the course is further to inquire, whether from such knowledge, the witness would believe that person upon his oath. In the American Courts the same course has been pursued; but its propriety has been questioned, and perhaps the weight of authority is now against permitting the witness to testify to his own opinion. 1 Greenl. Ev. § 461; Gass v. Stinson, 2 Sumner, 610; Kimmel v. Kimmel, 3 Serg. & Rawle, 337, 338; Phillips v. Kingfield, 19 Maine, 375; 2 Phil. Ev. (Cowen & Hill's notes,) (530,) (531,) pp. 763-770.

'Callaghan v. Rochfort, 3 Atk. 643.

* Hind. 375.

* Ibid.; also, Hind. 377. If the witness be impeached, evidence of his general good character is admissible. Richmond v. Richmond, 10 Yerger, 343; 1 Greenl. Ev. § 461. See The People v. Davis, 21 Wendell, 309.

The deposition of a disinterested person who afterwards becomes interested, may be read. Hitchcock v. Skinner, 1 Hoff. Ch. R. 21.

Dixon v. Parker, 2 Ves. 219, 220.

CHAPTER XXII.

OF SETTING DOWN THE CAUSE FOR HEARING.

WHEN the evidence is closed, the next step is to set the cause down for hearing.1

Formerly, this might be done before either the Lord Chancellor or the Master of the Rolls, according to the discretion of the solicitor, regulated by the nature and importance of the suit, and the arrear of cases depending before each of them respectively; but we have seen that, according to the present practice, it is incumbent upon the plaintiff, at the time when he files his bill, to signify by indorsement upon the record before which of the Judges of the Court he intends the cause to be heard.2

After a cause is set down before the particular Judge, with whose name it is indorsed, it remains liable to be transferred to the Court of any other Judge, by special order of the Lord Chancellor.

A cause is usually set down for hearing by the plaintiff; and the 16th Order of May, 1845, Art. 45, provides, that "within four weeks after publication has passed, the plaintiff is to set down his cause, and obtain and serve a subpoena to hear judgment; otherwise any defendant may move to dismiss the bill for want of prosecution." This Order is still applicable, though for the word publication it would be now more correct to say closing of evidence.

3

1 The English rules in Chancery, relating to setting down a cause for hearing, have not been adopted in Massachusetts. Charles River Bridge v. Warren Bridge, 7 Pick. 344. See Pingree v. Coffin, 12 Cushing, 600. They are inapplicable in New Jersey. West v. Paige, 1 Stockt. (N. J.) 203. In this latter State by rule of Court, all causes, including pleas and demurrers, shall be set down for hearing for the first day of the term, if there is sufficient time to give the required notice; if not time, then at a subsequent day in the term, and shall have priority according to the date of the issue. Chancery Rule, XV.

2 In Massachusetts, cases in Equity, and motions and other applications therein, whether interlocutory or final, shall in the first instance be heard and determined by one of the Justices of the Supreme Judicial Court. Genl. Sts. c. 113, § 6. And for hearings, and making, entering, and modifying orders and decrees in Equity causes, by a single Justice, and issuing writs in such causes, the Court shall be always open in each county, except on holidays established by law. Genl. Sts. c. 113, § 6.

See also 114th Order, Art. 4.

The Orders of May, 1845, allow, as we have seen, four weeks after the closing of the evidence for the plaintiff to set down his cause, but they do not define how soon after publication he is at liberty so to do.

The 82d Order of 1828 directs that from thenceforth " causes may be set down for hearing, and the subpœna ad audiendum judicium served and returnable on any day as well out of term as in term," and there appears to be no reason now why a plaintiff should not set his cause down immediately after the evidence is closed.

It has been stated, "that if, after publication passed, the plaintiff neglects to set the cause down to be heard, any defendant, after the expiration of four weeks, may set the same down at his own request, instead of proceeding to dismiss the bill for want of prosecution, and may obtain a subpœna to hear judgment, and serve the same on the plaintiff."

According to the former practice, a defendant could not regularly set down a cause to be heard before publication; so that if the plaintiff obtained an order to enlarge publication, unless the order was upon some condition that it should not prevent the cause from being set down in the mean time, the defendant could neither set down the cause nor serve a subpoena to hear judgment, until after the time to which publication was enlarged had expired.2 When the defendant applied to enlarge publication, it was usual to make the order with a special clause, " so as not to prevent the plaintiff setting down his cause in the mean time." This order applied to the old practice, but there is nothing to prevent the Court acting upon the precedent hereafter.

When the plaintiff, instead of filing a replication, proceeds to have the cause heard upon bill and answer, he must, under the 114th Order of May, 1845,5 set the cause down within four weeks after the answer, or the last of the answers, is found or deemed to be sufficient, or after the filing of, a traversing note. 1 Ante, p. 800.

* Langley v. Fisher, 5 Beav. 588; Ellis v. King, 4 Mad. 126; 116th Order, May, 1845.

* Hind. 403.

• Where an answer, if true, is an insufficient defence, the proper course is to

set the cause down for hearing on the bill and answer which is tantamount to a demurrer at law. Bridge v. Burns, 1 Morris, 287.

See ante, p. 800.